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SELF-DEFENCE AS A CRIMINAL DEFENCE

WHAT IS SELF-DEFENCE?
Section 418 of the Crimes Act (1900) lays out what kind of acts constitute self-defence, and is therefore not punishable by law. An act of injuring or killing a person can be defended by a claim of self-defence. Acts that may be viewed as self-defence are:

Defending oneself or another person against someone,
Preventing or terminating the unlawful deprivation of one’s liberty or the liberty of another,
Protecting property from unlawful taking, destruction, damage or interference,
Preventing criminal trespass or removing a person committing criminal trespass.
The act of self-defence has to be of reasonable force and proportionate in relation to the circumstances. When determining whether an act constitutes self-defence, the court bases their decision on how the person perceived the threat.

HOW TO PROVE IT?
It is the prosecution’s duty to prove beyond a reasonable doubt that the conduct in question was not carried out as a means of self-defence. Specifically, the prosecution has the burden to prove either:

(a) The accused did not believe at the time of the conduct that he/she was doing what was necessary to defend his/herself; or

(b) The conduct of the accused was not a reasonable response to the circumstances as he/she perceived them.

If either one of these statements is proven beyond a reasonable doubt, the self-defence division is off the table for the defence. However, the standard for the defence is “reasonable possibility,” e.g. is there a reasonable possibility that the conduct of the accused was a reasonable response to the circumstances as he perceived them, while the prosecution must prove beyond a reasonable doubt that that “reasonable possibility” does not exist.

In addition, the self-defence division is not illegitimate merely due to the fact that the conduct to which the self-defence response was executed was lawful, nor merely because the other person is not criminally responsible for their conduct. Essentially, if the person claiming self-defence had a reasonable basis for feeling as if their life or general safety was being threatened, their actions can qualify as self-defence. In other words, the conduct in question was a reasonable response to the circumstances as perceived by the individual.

NEED LEGAL ADVICE?
For more information and legal advice regarding Self-Defence, call our experienced solicitors on (02) 9233 7776 or email us.

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